What's good for the goose is good for the gander - warrantless searches in terms of fiscal legislation

Abstract

Both the Tax Administration Act and the Customs and Excise Act provide SARS with the power to conduct a search and seizure without first obtaining a warrant. The justification for a warrantless search is that it enables SARS to act straight away, thus preventing tax evaders from destroying or hiding evidence of their evasion. This article explains that certain circumstances need to be present before a warrantless search may be conducted, and certain guidelines must be adhered to when a warrantless search and seizure operation is conducted. This article, more importantly, demonstrates that the warrantless-search framework of the Customs and Excise Act is inconsistent with the warrantless-search framework of the Tax Administration Act. Consequently, when a taxpayer may be subject to value-added tax (which is collected in terms of the Tax Administration Act) and customs duty (which is collected in terms of the Customs and Excise Act) SARS can elect to conduct a search in terms of the less stringent provisions, resulting in ‘provision shopping’on the part of SARS.